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Supreme Court of the ACT |
Last Updated: 19 May 2009
CHRISTOPHER JAMES BYRNE v JASON MICHAEL MURRAY [2009]
ACTSC 47 (7 May 2009)
APPEAL – appeal from finding of guilt and convictions imposed in the ACT Magistrates Court.
APPEAL – principles for determining appeal – error of law – miscarriage of justice – Magistrates Court Act 1930 (ACT).
APPEAL – grounds of appeal – error by Magistrate in treatment of appellant’s self-defence argument.
APPEAL – grounds of appeal – miscarriage of justice – appellant alleges Magistrate drew adverse inference from possible infringement of rule in Browne v Dunn – adequate grounds in evidence for Magistrate to reach conclusions he did – no miscarriage of justice.
APPEAL – grounds of appeal – miscarriage of justice – Magistrate initially referred to only one of two charges – error in Magistrate’s process of reasoning to a conclusion about appellant’s guilt – Magistrate engaged in detailed and specific process of reasoning – no miscarriage of justice.
CRIMINAL LAW – defences – self-defence – appellant contends self-defence was raised in contested hearing and not negatived by prosecution – basic facts of incident in dispute – Magistrate found beyond reasonable doubt that evidence adduced by prosecution did not allow for self-defence to arise in the way claimed by the appellant – Magistrate not obliged to look for specific negativing of appellant’s self-defence claim – no error by Magistrate.
CRIMINAL LAW – defences – self-defence – whether Magistrate properly dealt with appellant’s self-defence argument – Magistrate relied on appellant’s use of word “retaliate” in his description of incident – Magistrate incorrect in finding that, because “retaliate” does not mean “act in self-defence”, self-defence had not been raised – sufficient evidence for Magistrate to find self-defence had been negatived.
Crimes Act 1900 (ACT) s 26
Magistrates Court Act 193 (ACT) ss 207, 208, 218
Zecevic v DPP [1987] HCA 26; (1987) 162 CLR 645
Browne v Dunn (1893) 6 R 67
R v Manuata (1989) 54 SASR 17
ON APPEAL FROM THE MAGISTRATES COURT
No. SCA 19 of 2008
Judge: Penfold J
Supreme Court of the ACT
Date: 7 May 2009
IN THE SUPREME COURT OF THE )
) No. SCA 19 of 2008
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT
BETWEEN: CHRISTOPHER JAMES BYRNE
Appellant
AND: JASON MICHAEL MURRAY
Respondent
ORDER
Judge: Penfold J
Date: 7 May 2009
Place: Canberra
THE COURT ORDERS THAT:
1. The appeal be dismissed.
Introduction
1. Christopher James Byrne appeals from his convictions in the Magistrates Court on two charges of assault under s 26 of the Crimes Act 1900 (ACT).
Background
Circumstances of the offences
2. The two charges relate to an incident between the appellant and his then partner (the complainant) on the morning of 12 April 2007. At the time, the couple were living together with their three-month old daughter. An argument developed between the appellant and the complainant about attending to the baby, who apparently needed her nappy changed.
The complainant’s version
3. The complainant alleged that during the argument, the appellant grabbed her by the throat and pushed her up against the wall, choking her. The complainant then took hold of the appellant’s neck and scratched him, at which point he released her.
4. The complainant then took the child into the lounge room. She alleged that the appellant followed her, yelling at her, and then grabbed her and threw her onto the couch. While she was on the couch, she alleged, the appellant got on top of her, put her in a headlock and kicked her on the shin. Shortly after the appellant released her, the complainant contacted police.
The appellant’s version
5. The appellant’s version of the story was quite different. He admitted grabbing the complainant by her throat and putting her up against the wall, but claimed this was done after the complainant had grabbed him by the throat as he walked past her in the hallway.
6. The appellant denied that the second incident took place at all.
7. The appellant was interviewed by police on the evening of 12 April 2007, and the Record of Interview was admitted in evidence at the hearing in the Magistrates Court.
Court processes
Grounds of appeal
9. The grounds of appeal set out in the notice of appeal were amended at the hearing of the appeal; the amended grounds are as follows:
(a) The learned Magistrate erred in finding that the defendant had not acted in self-defence in retaliating against the alleged victim.
(b) The learned Magistrate erred in concluding that the term “retaliated” in the context of the case did not mean or amount to self-defence.
(c) In all the circumstances of the case, there was a miscarriage of justice.
Principles for determining the appeal
10. An appeal against conviction in the Magistrates Court is provided by ss 207 and 208 of the Magistrates Court Act 1930 (ACT) (para 208(2)(b) in particular). On such an appeal, the Supreme Court may deal with the conviction as set out in s 218 of that Act. The grounds available in such an appeal against conviction are that there was an error of law, or that for any other reason there was a miscarriage of justice.
Consideration of appeal grounds
Amended grounds (a) and (b)—self-defence
11. The self-defence argument appears to relate only to the first charge, as to which the appellant admits that he grabbed the complainant by the neck. The appellant’s argument is to the effect that his evidence raised the possibility that he had acted in self-defence, that the prosecution was therefore obliged to negative that possibility, and that the learned Magistrate had erred in finding the appellant guilty. It was not made clear whether the only argument is that his Honour did not accept that self-defence was a live issue and therefore did not assess the prosecution evidence from that perspective, or whether it is also argued that his Honour incorrectly accepted the prosecution’s evidence as sufficient to negative self-defence, so I shall address both issues.
12. The appellant appears to face two hurdles in establishing that his Honour should have accepted his claim of self-defence.
13. First, he needs to establish that the facts of this incident were such that self-defence might have been an available claim. Secondly, even if self-defence is shown to have been properly raised, the appellant faces the problem that the prosecution may have been able to negative his self-defence claim. While the onus of negativing self-defence remains on the prosecution, it is clear that the less convincing is the accused’s evidence, the more readily will the trier of fact be able to accept that the evidence in total is sufficient to negative self-defence.
14. Self-defence often arises where the central facts of an assault are not in dispute and only the explanation of those facts is unclear. If a possible explanation of the assault indicates that the accused might have acted in self-defence, then it will be up to the prosecution to rule out self-defence.
15. However if, as in this case, the basic facts of the incident are in dispute, and the trier of fact is satisfied beyond reasonable doubt by a version of the facts that does not allow for self-defence to arise in the way claimed by the accused, or to arise at all, then the accused’s claim of self-defence need not be dealt with any further. To take an extreme example, suppose a victim suffers a blow to the back of the head, and several witnesses give evidence that it was inflicted by the accused approaching the victim from behind and using a baseball bat, while the accused says that the victim’s injuries were suffered when, acting in self-defence, he pushed the victim over. If, despite the accused’s evidence, the version of events put by the prosecution witnesses satisfies the trier of fact beyond reasonable doubt, then the trier of fact would not be required also to consider specifically whether the prosecution has negatived elements that would be necessary to make out the accused’s claim of self-defence. This is because self-defence could not arise under the version of events accepted by the trier of fact.
Did self-defence arise at all?
16. In relation to the first assault, the appellant gave the following explanation to police in his Record of Interview:
I went to go past her again, that’s when she grabbed me by the throat. Um, and sort of jolted me back. I then grabbed her by the throat, put her up against the wall and hit her hand away, I go, “don’t grab me by the throat, I don’t appreciate you talking to me like this, I don’t like it”, but it wasn’t exactly those words.
17. In the Magistrates Court, the appellant gave evidence about that assault in the following terms:
As to the allegation that you grabbed [the complainant] by the throat, what do you say to it? -- It was in retaliation.What did she do first to bring about that retaliation from you? -- Prior to that she grabbed me by the throat fairly severely, and I retaliated by grabbing her to the throat and knocking her hand away as well.
...
And what was your state of mind when she grabbed you by the throat on this date, 12 April 2007? -- That I’ve had enough of it, and I’m not going to let her try and grab me any more and have it over me, yes.
...
Why did you react in the manner in which you did? -- To get her arm away from my throat.
18. In cross-examination the appellant gave the following evidence:
Sir, [the complainant] gave evidence that she was at the time just over 60 kg, you would have been about 120. Would you agree with that assessment of your respective weights? -- I think I was hovering around 110, but yes something like that.All right. So you are much bigger than [the complainant]? -- Yes.
...
If I could just ask you about what you do admit, which is you did admit to the police that you grabbed her around the throat in retaliation? -- Yes.
All right. If I suggest to you that what happened when you grabbed her around the throat was that you pushed her up against the wall and you had a firm grasp around her neck. Would you agree with that? -- Yes, yes I’d agree with that, yes.
...
And when you had her up against the wall and you were holding her round the throat, was that with one hand or two hands? -- One hand.
Okay. And she was trying to get away wasn’t she? -- No she still had me by the throat until I hit her hand away.
19. In this case, the complainant’s evidence, that the appellant grabbed her first and that she responded by grabbing him, is inconsistent with the appellant’s claim that he acted in self-defence, grabbing the complainant only after she grabbed him. Therefore, if the learned Magistrate was satisfied beyond reasonable doubt that events happened as described by the complainant, he was not obliged to look beyond that for any specific negativing of the claim that the appellant acted in self-defence.
20. It is true that the complainant, in cross-examination, agreed that after the first assault the appellant had asked her more than once “Why did you grab me by the neck?”. However, in response to a question allowed over the objection of the prosecutor, the complainant denied that this was because she had grabbed the appellant by the neck for no reason. It does not seem to me that the complainant’s “concession” required his Honour to find that he could not be satisfied beyond reasonable doubt by the complainant’s evidence about the assault itself.
21. Having read the transcript of evidence given in the Magistrates Court, I can find no basis for saying that the learned Magistrate, who also had the benefit of seeing the appellant and the complainant giving evidence in person, could not appropriately have preferred the evidence of the complainant, and could not have been satisfied beyond reasonable doubt that the circumstances of the assault did not raise the possibility of self-defence.
If self-defence was a possibility, was it properly dealt with?
22. In case I am wrong about this, I next consider whether, if self-defence was a live issue, his Honour dealt correctly with it.
23. If the conflicting evidence of the appellant did cast doubt on the complainant’s evidence about the order of events, then his Honour should have considered the appellant’s alternative version of events before reaching a conclusion on the charge. However, I consider that even if the learned Magistrate was convinced by the appellant’s description of the assault, it was not inevitable that he would uphold the claim of self-defence.
24. The significant elements of the appellant’s version of events, set out in his evidence quoted at [16] to [18] above, were as follows:
(a) the complainant first grabbed him by the throat “fairly severely”;
(b) he “retaliated” by grabbing the complainant around the throat with one hand, pushing her up against the wall, and knocking her hand away;
(c) his intention was to “get her arm away from my throat”;
(d) his state of mind at the time was that he had “had enough of it”, and that he wasn’t going to “let her try and grab me any more and have it over me”.
25. In Zecevic v DPP [1987] HCA 26; (1987) 162 CLR 645 (Zecevic), Wilson, Dawson, and Toohey JJ, with whom Mason CJ (at 654) and Brennan J (at 666) agreed, provide at 661 the appropriate test against which to assess this evidence:
The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal.
26. Thus, the prosecution can negative self-defence by establishing either that the accused did not believe that it was necessary to act as he or she did in self-defence or that there were no reasonable grounds for the accused to have such a belief.
27. In the learned Magistrate’s reasons, his Honour placed considerable reliance on the appellant’s use of the word “retaliate” to describe his treatment of the complainant. He said:
The defendant has on a number of occasions, including during his sworn evidence, said that he retaliated to being so grabbed. It was submitted on his behalf that this use of the word “retaliated” indicated he was acting in self-defence. It was submitted that the use of the word and the context in which it was used raised the question of self-defence and that the prosecution had not rebutted that defence. I can’t accept that this submission has any force.The defendant admitted in cross-examination he was angry when he said he was grabbed round the neck. Even accepting that this version of the facts is correct, which I don’t, it does not raise self-defence. It shows anger and displeasure and an intent to retaliate. The dictionary meaning of this word is to take a retributory action, especially by returning some injury or wrong in kind. It does not have a dictionary meaning of act in self-defence.
28. The learned Magistrate was correct in finding that the use of the word “retaliate” did not of itself establish that the appellant was acting in self-defence. However, I do not consider that it was appropriate for his Honour to find that self-defence had not been raised on the ground that “retaliate”, the word used by the appellant, does not have a dictionary meaning of “act in self-defence”. First, the appellant had given other evidence that could have raised the issue, such as when he answered a question about why he had reacted as he did by saying “to get her arm away from my throat” (see [17] above). Secondly, there was no evidence suggesting that the appellant, who at the time of the offence was an unemployed 20-year-old, should be assumed to understand the exact dictionary meaning of the word “retaliate”, let alone the relationship between that word and the legal concept of self-defence.
29. However, even if the appellant’s use of the word “retaliate” could not properly determine the question whether self-defence had been raised, there was evidence sufficient for his Honour to find that self-defence, if raised, had in fact been negatived.
30. Applying the Zecevic test, the first question is, did the appellant believe that it was necessary in self-defence to do what he did? The appellant’s evidence indicated that he had “had enough of it”, that he was not willing to put up with the complainant grabbing him any more, and that he hit her hand away from his throat. In the police Record of Interview (Answer 67) the appellant describes his words to the complainant:
... I go, “Don’t grab me by the throat, I don’t appreciate you talking to me like this, I don’t like it,” but it wasn’t exactly those words.
31. There is, however, no evidence that he felt in danger of physical harm (as distinct from at risk of an injury to his pride), and no evidence that grabbing the complainant by her throat and pushing her up against the wall was a necessary part of using his hand to remove the complainant’s hand from his throat. Thus, the appellant’s own evidence would be sufficient to establish that he did not believe that it was necessary for him to act as he did in self-defence.
32. The second question is, were there reasonable grounds for any belief that it was necessary for the appellant to act as he did in self-defence? The evidence elicited at the hearing to the effect that the complainant at the time of the assault weighed about 63 kilograms and the appellant weighed between 110 and 120 kilograms, taken together with the undisputed fact that the complainant had given birth to a baby only three months earlier, suggests that the appellant was in little or no danger from the complainant in an unarmed physical conflict. This evidence, taken together with the absence of any evidence that the appellant was at the time of the assault at risk of any specific physical harm from the complainant, would have been enough for his Honour to find beyond reasonable doubt that there were no reasonable grounds for the appellant to believe that he needed to act in self-defence.
33. Accordingly, I find that his Honour should not have ruled out the possibility of self-defence on the basis of the appellant’s use of the word “retaliate”, but that if self-defence was raised, it was effectively negatived because:
(a) there was evidence from the appellant of his motives for the assault, and that evidence did not show any belief that it was necessary to act as he did in self-defence; and
(b) there was evidence indicating that there were no reasonable grounds for any such belief, and no evidence that there were any such grounds; and
(c) there was no reason why the evidence that was given could not have satisfied the learned Magistrate beyond reasonable doubt.
34. Accordingly, I find that, on whichever element of the Zecevic test it was based, his Honour’s conclusion that the claim of self-defence did not entitle the appellant to be acquitted of the first assault was correct.
Amended ground (c)—miscarriage of justice
35. Two matters are raised as possibly leading to a miscarriage of justice.
Adverse inference drawn from possible infringement of “rule” in Browne v Dunn
36. First, it is suggested that the sentencing Magistrate formed the view that the “rule” in Browne v Dunn (1893) 6 R 67 (Browne v Dunn) had been infringed, that he inferred from this that the appellant’s instructions to his counsel had changed, and that from the inferred change in the appellant’s instructions his Honour further inferred that the appellant was not a truthful witness.
37. The learned Magistrate considered that not all the relevant parts of the appellant’s version of events, as set out in the police Record of Interview, were put to the complainant when she gave evidence. His Honour, in his reasons for decision, referred to “the so-called rule in Browne v Dunn”, in the context of saying:
In the present case there are a number of issues that were not put to the complainant – matters that are sought to be used to contradict the evidence she gave under oath. Some of them are contained in a record of interview, a document that I must accept that she has never seen as there is no evidence either way.
38. He also commented on questions that had in fact been asked by the appellant’s counsel in cross-examination of the complainant, saying:
The questions are not asked without instructions....
Why can’t I take the well-accepted proposition that instructions are put by counsel who are competent counsel, and they’ve put questions on instructions given them, instructions have obviously changed?
39. Counsel for the appellant submitted that the learned Magistrate’s comments implied that he had drawn an adverse inference against the appellant, namely that his evidence was not truthful, from his counsel’s cross-examination of the complainant.
40. At the appeal hearing, counsel for the respondent conceded, first, that his Honour seemed to have overlooked parts of the cross-examination of the complainant that did fill in some of the gaps he had identified and, secondly, that it was not clear from his Honour’s comments what inferences he did draw from his assessment of whether the “rule” in Browne v Dunn had been infringed.
41. Before dealing with this argument I should refer to a minor matter, the paragraphing of relevant parts of his Honour’s comments as set out in the Magistrates Court transcript. This part of the transcript appeared in the Appeal Book (but without any indication that it had been approved by the sentencing Magistrate) in the following form:
In the present case there are a number of issues that were not put to the complainant – matters that are sought to be used to contradict the evidence she gave under oath. Some of them are contained in a record of interview, a document that I must accept that she has never seen as there is no evidence either way.I have seen both the witnesses and assessed their credibility and I found the complainant a witness of truth. The defendant was not, in my view, a witness of impressive demeanour. The defence of self-defence was attempted to be relied upon. It was, as I understood it, said that the complainant had hit the defendant on a number of occasions prior to the date of the incident in question in this charge.
42. That paragraphing obscures what I consider to be the link between his Honour’s view about the Browne v Dunn issue and his findings on credibility, which is much clearer if the sentences about credibility run on from his comments about Browne v Dunn rather than appearing to be the start of his Honour’s comments about self-defence. Recognising the comments about the Browne v Dunn issue as part of his Honour’s comments about credibility provides some extra weight to the appellant’s argument.
43. In R v Manuata (1989) 54 SASR 17 at 23, King CJ pointed out that:
It is legitimate, of course, to draw appropriate conclusions from counsel’s failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect on the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked.
44. King CJ’s warning about the risk of drawing inferences from a failure to cross-examine about particular matters requires a careful examination of the sentencing Magistrate’s remarks, but I do not consider that even a careful examination discloses any miscarriage of justice.
45. His Honour makes it clear in his reasons that his assessment was based on his observations about the complainant and the accused, and that he has found the complainant “a witness of truth”, while the appellant was not “a witness of impressive demeanour”. It is possible that his unfavourable view of the appellant originated in part with an assumed failure by counsel to put to the complainant in cross-examination all aspects of the appellant’s conflicting evidence, but I do not interpret his Honour’s remarks as indicating that any such assumption was determinative in his conclusions about which evidence he accepted and which he rejected.
46. It may also be true, as mentioned in passing by counsel for the appellant, that a witness’s demeanour is not necessarily related to his or her veracity, but the distinction being drawn by his Honour between the credibility of the two witnesses was clear, and clearly based on his assessment of both the complainant and the appellant as they presented themselves at the hearing. Furthermore, quite apart from his Honour’s own observations, which are not available to this court except in that summary form, there were adequate grounds in the evidence available to his Honour from the complainant, the two police witnesses, the photographs and indeed from the appellant himself, for his Honour to reach the conclusions that he reached.
47. Accordingly, I find that whatever significance his Honour placed on the application of Browne v Dunn in this case, it did not result in any miscarriage of justice.
Failure in process of reasoning to appellant’s guilt for each charge
48. At the end of his judgment, the learned Magistrate closed with comments on the evidence relating to the second charge of assault, and said “I find the offence proved”. Counsel for the appellant submitted that in referring only to “the offence” when there were in fact two offences, his Honour revealed that he had not, separately in respect of each charge, gone through a specific process of reasoning to a conclusion about the appellant’s guilt.
49. After his Honour’s comment, counsel for the prosecution noted that the appellant had no criminal record, and then pointed out that there were two charges before his Honour, who responded with “Two charges. I find the offences proved”.
50. I do not accept that his Honour’s earlier comment represented anything more than a slip of the tongue. His judgment occupies almost exactly two pages of transcript in the Appeal Book. More than a page of transcript relates to the first offence (that in relation to which self-defence was raised), and although his Honour does not make an express finding on that charge, it is clear that he is convinced by the prosecution evidence when he says:
I do not accept the defendant as a witness of truth. His denial of inflicting any further injury on the complainant, apart from the marking to the right side of her neck and throat, is not in accord with the evidence.
51. The last paragraph in his judgment relates to the second charge and it is obviously this offence that is in his mind when he says, as his conclusion, “I find the offence proved”. Whether or not he was thinking also about the first offence when he made this finding, it is very clear from his judgment as a whole that he has gone through a specific process of reasoning about that first charge, indeed a process more detailed than that undertaken in respect of the second charge, so there is no basis on which a miscarriage of justice could be found by reference to his Honour’s slip of the tongue.
Findings
52. Accordingly, I find:
(a) that the learned Magistrate did not err in finding that the appellant had not acted in self-defence in retaliating against the alleged victim; and
(b) that his Honour did not err in concluding that the term “retaliated” in the context of the case did not mean or amount to self-defence; and
(c) that although there may have been error in his Honour’s focus on the appellant’s knowledge and understanding of the dictionary meaning of “retaliate”, this did not vitiate his Honour’s finding in relation to self-defence; and
(d) that there was no miscarriage of justice arising from his Honour’s view of whether the “rule” in Browne v Dunn had been infringed and the consequences of that for the appellant’s credibility; and
(e) that there was no miscarriage of justice arising from his Honour’s slip of the tongue in his final remarks about finding “the offence” proved.
Order
53. The appeal is therefore dismissed.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date: 7 May 2009
Counsel for the appellant: Mr J Sabharwal
Solicitor for the appellant: Romano Satsia Kordis Legal
Counsel for the respondent: Director of Public Prosecutions (ACT)
Solicitor for the respondent: Mr M Thomas
Date of hearing: 23 October 2008
Date of judgment: 7 May 2009
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